On June 18, 2010, the Federal Register published the Department of Education's long-anticipated Notice of Proposed Rulemaking (NPRM) on program integrity. This NPRM is the partial result of negotiated rulemaking sessions held from November 2009 to January 2010. The Department brought 14 issues to the negotiating table for regulatory action, but tentative agreements were reached on only 9 of the issues. Since consensus agreement was not reached on the entire package of 14 issues, the Department was released from any obligation to adhere strictly to the tentative agreements that had developed over the course of the negotiations.

The next step in the regulatory process is public comment on the NPRM, due no later than August 2, 2010, as instructed in the NPRM. Your input by August 2 is vital on these critical Title IV regulatory proposals. All of the issues addressed in the NPRM are significant. NASFAA will publish a series of articles on the issues to help you analyze the proposals. Please copy NASFAA (policy@nasfaa.org) on any comments you submit.

Background

The Department of Education proposes to revise the rules pertaining to the return of Title IV funds by changing the definition of what constitutes required taking of attendance.

Whether a school is required to take attendance impacts the determination of a student's withdrawal date. The withdrawal date in turn determines how much Title IV funds a student who did not complete the payment period is entitled to use for educational costs, and how much must be returned by the school and by the student.

Institutions that are required to take attendance by an outside agency must use the last date of attendance according to attendance records, whether the student withdrew officially or unofficially. No other alternatives are available. The determination as to whether the school is considered "required" to take attendance is made by the outside agency (such as, but not limited to, a state or accrediting agency).

Institutions that are not required to take attendance use the date the student officially withdrew. If the student dropped out without notifying the school, the institution may use the midpoint of the payment period as the withdrawal date or may choose to establish an earlier or later withdrawal date by documenting a last date of academically-related activity. Academic activities for institutions that are not required to take attendance include but are not limited to class attendance. Examples of other types of academically-related activities include: taking tests; turning in papers or other assignments; computer-assisted instruction; academic advising, counseling, or conferences; tutorials; and participation in school-assigned study groups. Only schools that are not required to take attendance may use activities other than class attendance to document a last date of attendance.

The distinction between schools that are required to take attendance and those that are not is established in statute. The law defines the unofficial withdrawal date for institutions not required to take attendance as "the date that is the mid-point of the payment period for which assistance under this title was disbursed or a later date documented by the institution." Regulations allow for an earlier date as well, because institutions asked for that authority during the regulatory process that originally implemented the law. The concept of academically-related activity is also regulatory rather than statutory.

The law refers to an institution that "is required to take attendance," not that "takes attendance." However, it does not define that phrase. There is a long and contentious history to the regulatory definition. The Department has often expressed a belief that whenever an institution has attendance records, even for a limited period of time rather than the whole payment period, it should use them.

Proposed Rules

The NPRM proposes to redefine the regulatory definition of "an institution that is required to take attendance" to encompass institutions that voluntarily take attendance.

An institution that takes attendance during a limited period of time (any period in excess of a single day) would be treated as an institution that is required to take attendance during that period, and as an institution that is not required to take attendance for the balance of the payment period.

The proposed rule stipulates that "a student in attendance at the end of the limited period ... who subsequently stops attending during the payment period will be treated as a student for whom the institution was not required to take attendance."

The proposed rule would continue the current regulatory requirement that if only some students at the institution are subject to required attendance protocols, those students are subject to the last date of attendance rules applicable to institutions that are required to take attendance.

The proposed rule would also eliminate the current caveat that an outside agency determines whether its own procedures result in a requirement to take attendance. Instead, the NPRM proposes that an institution be considered as required to take attendance if the "institution or an outside entity has a requirement that can only be met by taking attendance or a comparable process, including, but not limited to, requiring that students in a program demonstrate attendance in the classes of that program, or a portion of that program."

The proposed rule language did not achieve agreement during the negotiated rulemaking that preceded this NPRM. The definition of institutions required to take attendance was one of the issues on which consensus failed.

Questions and Concerns

Institutions that are not required by some outside authority to take attendance sometimes do so voluntarily for very limited periods of time and for purposes unrelated to determining seat time. For example, an institution might require confirmation of attendance during the first couple of weeks of class simply to establish class rosters, monitor add/drop activity, finalize enrollment status, or take a head count. At institutions that are not required to take attendance, the decision or consent to do so often resides with the individual faculty member and may differ radically for the same student from one course to another.

The proposed rule sets up two very different definitions of withdrawal date for the same students at the same school. A student who appears to have stopped attending class during a census period may well be in fact participating in other academically related activities, and may attend class again after the census period. The law is constructed in such a way that an institution that does not have to take attendance cannot be required by ED to do so, and the law set the midpoint as a compromise withdrawal date in recognition of the fact that a student who walks away without notifying the institution that he or she is withdrawing has caused the institution to incur additional costs. The NPRM seems to negate those concepts that resulted in the law being written as it is.

A student who is absent the last few days of a limited census period might simply be sick or have other reasons for not sitting in class. Within the census period, a student whose schedule includes classes that meet on different days might attend the last class of a Tuesday/Thursday course but miss the last day of a Monday/Wednesday/Friday course; if that Friday is the last day of the census period, how is the institution to say whether that constitutes a drop?

The preamble of the NPRM states that "Institutions have the option under § 668.22(c)(3) to use a student's participation in an academically related activity to show that the student continued to be enrolled to a point where the institution was no longer required to take attendance." An option that institutions currently have to voluntarily determine a withdrawal date rather than use the midpoint would essentially become a requirement under the proposed rule.

If you wish to respond to the proposed rule, try to work through how you would implement it. Following are some questions we would ask.

Suppose a student who skips classes on the last day of a limited period of attendance-taking (he was sick with the flu, for example) subsequently stops attending for real at some point later in the payment period, without notifying the school or initiating the official withdrawal process. The proposed rule stipulates he had to be in attendance at the end of the period of attendance-taking to be treated subsequently under rules applicable to an institution not required to take attendance. This particular student was not in attendance at the end of the limited period of attendance-taking. So what does the school do now? An institution not required to take attendance could use the midpoint or attendance at some academically related activity other than class attendance; an institution required to take attendance cannot.

Suppose the student who did not attend last day of period of limited attendance-taking does officially withdraw two weeks later. Again, he was not in attendance at the end of the limited period of attendance-taking. The date the student began the official withdrawal process is not an allowed determinant of withdrawal date for schools that are required to take attendance ... does this institution have to prove academic attendance after the census date, or not? If so, must it be class attendance or may it be one of the other academically-related activities?

Pell Grant regulations concerning calculation and recalculation of payment amounts have resulted in schools having to prove that a student actually began attendance in all classes upon which the enrollment status was based. Is that a condition that can only be met by taking attendance through the census period? Is it reasonable to impose a penalty on an institution just because it has a method of confirming that a student has begun attending classes?

Who actually determines whether an outside entity's processes result in a requirement to take attendance if the agency does not itself consider its processes to be met only by taking attendance?

When does the institution have to determine that a student who did not attend the last day of class during a limited period of attendance-taking actually withdrew? The handbook declares that "Except in unusual instances, the date of the institution's determination that the student withdrew should be no later than 14 days after the student's last date of attendance as determined by the institution from its attendance records. The institution is NOT required to administratively withdraw a student who has been absent for 14 days. However, after 14 days, it is expected to have determined whether the student intends to return to classes or to withdraw. In addition, if the student is eventually determined to be a withdrawal, the end of the 14-day period begins the timeframe for completing a Return calculation."

[Note that treatment of attendance records during limited periods of required attendance-taking is currently nonregulatory guidance given in the "Federal Student Aid Handbook," developed without the benefit of negotiated rulemaking.]